Case No. VFA-0454, 27 DOE ¶ 80,172

November 17, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Alan Henney

Date of Filing: October 20, 1998

Case Number: VFA-0454

On October 20, 1998, the Office of Hearings and Appeals (OHA) of the Department of Energy (DOE) received a request from the Department of Commerce asking DOE to provide a direct response to part of an Appeal filed by Alan Henney under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. As detailed below, we will dismiss this Appeal because OHA lacks jurisdiction to adjudicate this matter under the DOE FOIA regulations, 10 C.F.R. Part 1004. We will also ask the FOIA/Privacy Act Division of the Office of the Executive Secretariat (DOE FOIA Office) to treat Mr. Henney’s Appeal as if it were a new request for documents under the FOIA.

BACKGROUND

This Appeal involves information concerning 3,273 radio frequency authorizations assigned to DOE by the National Telecommunications and Information Administration (NTIA) of the Department of Commerce.

On February 26, 1995, Mr. Henney submitted a FOIA request to the Department of Commerce seeking a list of all unclassified NTIA radio frequency authorizations, and accompanying information fields, for each agency in the Federal government. On February 6, 1996, the Chief Counsel of the NTIA issued a determination denying Mr. Henney’s request pursuant to Exemption 1 of the FOIA, 5 U.S.C. § 552(b)(1), because the information sought was classified as "confidential," and met the criteria established by Executive Order 12356.

On February 20, 1996, Mr. Henney appealed this determination to the Assistant General Counsel for Administration of the Department of Commerce. On September 14, 1998, in response to this Appeal, the

Assistant General Counsel issued a decision that provided some records to Mr. Henney, and explained that other records had been withheld because:

[t]he remaining records . . . consist of frequency assignments that the agencies to which they are assigned have asked us not to disclose, based on one or more FOIA exemptions. Thus, we are referring your appeal to these agencies (a total of thirty-two), each of which should respond directly to you.

The Assistant General Counsel stated that, under the FOIA, 5 U.S.C. § 552(a)(4)(B), Mr. Henney had the right to seek judicial review of the partial denial of records contained in this decision, but she recommended that Mr. Henney deal separately with an agency that was withholding its frequency authorizations.

A chart was appended to the decision that showed the total number of unclassified NTIA radio frequency authorizations assigned to each federal agency, and the number of FOIA exemptions claimed by each agency. The chart showed that DOE had a total of 9,592 unclassified NTIA radio frequency assignments, and had claimed that information concerning 3,273 unclassified NTIA radio frequency assignments was exempt from disclosure under the FOIA. The Assistant General Counsel did not cite any specific exemption that provided the basis for withholding information concerning each of the 3,273 radio frequency authorizations assigned to DOE. Additionally, the Assistant General Counsel did not indicate whether she had considered and rejected a discretionary release of this information, or whether there was any segregable, nonexempt information in the withheld records that she could have disclosed. Finally, the Assistant General Counsel never identified the DOE official who had requested that the documents be withheld under an exemption to the FOIA.

ANALYSIS

Under 10 C.F.R. § 1004.8(a) of the DOE regulations, OHA does not have jurisdiction to adjudicate this matter because there is no evidence that the decision to withhold documents in response to Mr. Henney’s FOIA request was made by a DOE officer who has custody or responsibility for these records under the FOIA. Moreover, under 10 C.F.R. § 1004.7(b), a legally sufficient denial of records under the FOIA has not been issued.

OHA’s appellate jurisdiction under the FOIA is based on DOE regulations. 10 C.F.R. Part 1004. Section 1004.8(a) of the DOE regulations gives OHA jurisdiction over matters arising under the FOIA only in the following circumstances:

When the Authorizing Officer (1) has denied a request for records in whole or in part or has responded that there are no documents responsive to the request . . . or when the Freedom of Information Officer has denied a request for waiver of fees.

OHA has consistently held that Section 1004.8(a) must be strictly construed, and does not confer jurisdiction upon OHA when the requester has not received an initial denial or a statement that there are no documents responsive to the request from an Authorizing Official. See John H. Hnatio, 13 DOE ¶ 80,119 at 80,566 (1985) (dismissing appeal because no determination issued); see also Suffolk County, 17 DOE ¶ 80,111 at 80,524 (1988) (dismissing appeal because OHA lacks jurisdiction over matters not explicitly set forth in jurisdictional regulation); Tulsa Tribune, 11 DOE ¶ 80,161 at 80,741 (1984) (without explicit statutory or regulatory provision, no administrative remedy exists for agency's noncompliance with a timeliness requirement). However, this Section does confer appellate jurisdiction upon OHA whenever a DOE Authorizing Official has denied records. Thus, OHA will have jurisdiction to hear an appeal based on a denial issued by another agency when the determination names a DOE Authorizing Official as the individual responsible for a denial of records. Cf. 10 C.F.R. § 1004.4(f)(2) (regulation involves denial of FOIA request by DOE at the behest of another agency, and requires that the other agency’s denying official be identified).

OHA cannot review the denial of records by the Assistant General Counsel for Administration of the Department of Commerce because there is no evidence, aside from a very general statement in the February 20, 1996 letter quoted earlier, that a DOE Authorizing Officer determined that these records should be withheld. The Assistant General Counsel’s generalized assumption that the Department of Commerce was withholding the information Mr. Henney seeks from DOE because DOE claimed that the withheld records are exempt from disclosure under the FOIA is not sufficient to consider this appeal. To confer jurisdiction upon OHA, the Assistant General Counsel should have identified the DOE official who made the determination to withhold these documents.

Moreover, the decision issued by the Assistant General Counsel is not a legally sufficient denial of documents under the DOE regulations because it does not contain other information required by 10 C.F.R. § 1004.7. Section 1004.7 requires, in relevant part, that each denial under the FOIA contain:

(1) A specific statement of the reason for the denial. The determination must refer to the FOIA exemption that justifies the non- disclosure of the information, provide an explanation of the reason that the exemption applies to the record withheld, and explain the reason that a discretionary release is not appropriate.

(2) A statement that identifies each DOE official who is responsible for the determination.

(3) A statement addressing the issue of segregable nonexempt material in the documents that have been denied.

(4) A statement that the determination may be appealed within thirty calendar days to the Office of Hearings and Appeals.

The information required by Section 1004.7 enables a requester to decide whether the agency’s response to its FOIA request was adequate and proper, and also provides OHA with a record upon which to base its consideration of an administrative appeal. Without an adequately informative determination letter, the requester and the review authority must speculate about the adequacy and appropriateness of the agency’s determinations. Burlin McKinney, 25 DOE ¶ 80,205 at 80,767 (1996).

The decision issued by the Assistant General Counsel is inadequate under the DOE regulations. First, as previously set forth, it failed to identify the DOE Official who determined that information relating to certain radio frequency authorizations assigned to DOE was exempt from disclosure. Moreover, it failed to specify the FOIA exemption that was applicable to each withheld record, to indicate whether segregable, nonexempt material in the withheld records had been released, or to inform Mr. Henney of his right to appeal to OHA. Usually, OHA will remand an insufficient determination to the Authorizing Official who issued it to correct the inadequacy. Here, however, the insufficiency of the determination rises to the level of a jurisdictional defect because an Authorizing Official is not identified, and the decision contains very little of the information required by Section 1004.7.

Neither Congress nor any administrative agency has empowered OHA to adjudicate an issue under the FOIA unless a DOE Authorizing Official has first denied the release of the requested documents. Because no DOE Authorizing Official is responsible for the denial of information, the Department of Commerce’s response to Mr. Henney’s FOIA Appeal does not contain a denial that OHA may review. Accordingly, OHA lacks jurisdiction to decide whether the information concerning the 3,273 radio frequency authorizations assigned to DOE was properly withheld by the Department of Commerce under an exemption to the FOIA. Accordingly, we must dismiss this Appeal.

We will forward Mr. Henney’s submission to the DOE FOIA Office with a request that it treat Mr. Henney’s Appeal as if it were a new request under the FOIA. A DOE Authorizing Official will then determine whether these documents should be provided to Mr. Henney. If the DOE Authorizing Official determines that any of these records are exempt from disclosure under the FOIA, the denial should refer to the FOIA exemption that justifies each non- disclosure of the information, provide an explanation of the reason that the exemption applies to the record withheld, and explain the reason that a discretionary release is not appropriate. Moreover, the DOE Authorizing Official should release to Mr. Henney all segregable nonexempt information contained in the records. Based on this information, Mr. Henney will be able to decide whether DOE’s response to his FOIA request is adequate, and OHA will have a full explanation of the agency’s action, should Mr. Henney chose to appeal the determination.

It Is Therefore Ordered That:

(1) The Appeal of Alan Henney received by the Office of Hearings and Appeals on October 20, 1998, is hereby dismissed.

(2) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: November 17, 1998

(1)The DOE regulations define the term "Authorizing or Denying Official" to mean a DOE officer who has custody of or responsibility for records under the FOIA. 10 C.F.R. § 1004.2(b).